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[2012] ZAFSHC 55
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Tshabalala v S (A74/2011) [2012] ZAFSHC 55 (29 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A74/2011
In
the appeal between:-
MOJALEFA
JAPPIE TSHABALALA
…....................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
DAFFUE, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
19 MARCH 2011
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
29 MARCH 2011
_____________________________________________________
[1]
On 24 February 2011 the appellant was convicted by C.J. Musi, J on a
charge of murder. He was sentenced to 12 (twelve) years
imprisonment.
[2]
The appellant successfully applied for leave to appeal against his
conviction.
[3]
The grounds of appeal are the following:
3.1
That the court
a quo
incorrectly found that the trajectory of
the cartridge indicated murder and irreconcilable with a shooting
accident;
3.2
That the court
a quo
erred in not finding that the firearm was
closer to the deceased’s head and that the deceased fatally
killed himself;
3.3
That the court
a quo
erred in not considering that the
appellant would not kill the deceased in cold blood and within
hearing distance of the people
next door;
3.4
That the court
a quo
erroneously found that the State had
proven its case beyond reasonable doubt and that appellant’s
version was not reasonably
possibly true;
3.5
That the court
a quo
misdirected itself in finding that
appellant’s falsehoods and concealment of the deceased’s
body was to cover up a
murder and not a shooting accident in terms
whereof the deceased killed himself.
[4]
The court
a quo
assessed the evidence and found that (a) the
deceased and appellant were the only two persons in the appellant’s
room when
the shooting incident occurred, (b) the deceased did not
shoot himself, and (c) the appellant murdered the deceased by
wrongfully
and intentionally shooting him with his (the appellant’s)
service pistol (herein later referred to as the firearm). It is
apparent from the evidence that the appellant was the only person
with knowledge as to what happened in his room when the deceased
was
killed.
[5]
The appellant not only lied to various witnesses from the very moment
after a shot was fired in his room, but concealed the
deceased’s
body underneath his bed for a few days and a few more days later he
removed it by using a car borrowed from a
friend to a place
approximately eight kilometres from the town of Reitz on the way to
Bethlehem. He also lied to Colonel Tsatsa
who was called upon to
assist with the investigation.
[6]
The following falsehoods, concealment and/or improbabilities are
apparent from the appellant’s version:
6.1
Me Mnguni, the appellant’s neighbour, heard a shot emanating
from the direction of the appellant’s room. Five to
ten minutes
later – and not immediately as one would have expected in case
of a shooting accident – the appellant entered
her room,
enquiring about the whereabouts of deceased. She informed him that
she left the deceased with him in his room At that
stage the
appellant was in civilian clothes, while a few minutes earlier his
torso was naked as he was busy washing himself. The
appellant
obviously made this enquiry to put the witness on a wrong track and
to let her believe that the deceased left his room
earlier.
6.2
After a while the appellant went back to Me Mnguni, dressed in his
SAP uniform and again enquired about the deceased’s
whereabouts. He told her that the deceased might cause him to be late
for work. Again he made a misrepresentation to the state
witness in
order to let her believe that the deceased was not in his room
anymore.
6.3
The appellant also informed Me Mnguni that he tried to contact the
deceased telephonically, but that he did not answer his cellphone.
It
was not possible for anyone to reach the victim for two obvious
reasons. Firstly, the deceased was already dead and secondly,
his
phone’s sim card had been removed by the appellant.
6.4
Mr. Moshoalibe also testified. He is the landlord who stays in the
main house whereas the appellant and Me Mnguni live in separate
rooms
at the back of his house. The appellant also informed him that he was
looking for the deceased and that he unsuccessfully
tried to get hold
of him telephonically. When the witness was informed that the
appellant might be late for work, he offered him
a lift to the police
station by his vehicle.
6.5
When Mr. Moshoalibe enquired from the appellant as to the origin of
the shot that he had heard, he was informed by the appellant
that his
kettle caused an electricity shortcut. It is clear from the
information provided to the landlord that the appellant also
tried to
put his landlord on the wrong track.
6.6
From the evidence of Me Mnguni and Mr. Moshoalibe, as well as Me
Motloung who confirmed Me Mnguni’s version to a large
extent,
the appellant and the deceased were under the influence of alcohol
when they arrived at the premises prior to the shooting
incident. The
witnesses contradicted each other as to the degree of intoxication.
The appellant denied that he was intoxicated
at all. His version was
corroborated by his colleague, Warrant officer Pheta. It is
significant that not one of these witnesses
testified that the
appellant appeared to be shocked, confused, emotional and/or
frightened when he left for work. This is contrary
to what he wanted
the court
a quo
to believe.
6.7
The next morning the deceased’s wife, Me Ngwenya came to the
appellant’s premises. The deceased’s vehicle
was still
parked on or adjacent to these premises. She was referred to
appellant’s room where she knocked, but there was
no reply. She
came back later with a spare key to remove deceased’s vehicle.
There was still no sign of the appellant. Apparently
he did not come
back to his room after doing night shift.
6.8
Me Ngwenya testified that deceased was right-handed and never played
with his firearm. He was in the employ of the South African
Police
Service since 2002 and as far as she was aware he had no reason
whatsoever to commit suicide.
6.9
Colonel Tsatsa interviewed the appellant on 11 May 2010, ten days
after the fatal shooting incident on 1 May 2010. On his arrival
at
the room where the appellant stayed prior to 1 May 2010 – he
moved to other premises after the incident - he noticed blood
stains
on the carpet and curtain. The appellant explained that he
slaughtered a sheep earlier. A police dog identified the blood
as
human blood. The appellant was not prepared to accept the expertise
of the dog and requested a further test to be undertaken
with an ox
liver. However the dog did not show any interest in the liver,
indicating that it was not tissue from a human body.
This was the
last straw that broke the camel’s back. The appellant made
certain pointing outs immediately hereafter.
6.10
He pointed out a drain next to his room where he got rid of the 9 mm
cartridge and casing. For the first time he came up with
a version
relevant to the disappearance of the deceased. He alleged that the
victim shot himself.
6.11
Hereafter he did a pointing out of the deceased’s body next to
the Reitz/Bethlehem road. He also took the Colonel to
his new home
and handed him his firearm and magazine containing 15 cartridges. It
is evident that he inserted a new cartridge after
the fatal shot was
fired in order to ensure that the required number of cartridges was
in his firearm at all relevant times. He
was fully aware of regular
firearm inspections undertaken by his seniors and that magazines at
all times had to contain the correct
number of cartridges.
6.12
Contrary to standing orders that in the event of a firearm being
used, it had to be reported immediately to the officer in
charge who
had to visit the scene and make the necessary enquiries, this did not
happen
in casu
as the appellant withheld relevant information
from his seniors.
6.13
It was denied by the Colonel as well as the ballistics expert,
Sergeant Shadung that police officials received training to
shoot
with both right and left hands. This cross-examination was embarked
upon in an attempt to show that it would be possible
for the deceased
to shoot himself by using his left hand. It is apparent from the
entrance wound on deceased’s head and the
trajectory of the
cartridge that it was virtually impossible for the deceased to shoot
himself by using his right hand.
6.14
Dr. Book who did the medico-legal post-mortem examination did not
find any traces of soot, searing and/or gunpowder tattooing
at either
the entrance or exit wound. From the expert information he has always
relied upon, this is indicative of a shot being
fired at a distance
of not less than one half to two thirds of a meter from the target.
He therefore discarded any allegation that
the shot was fired from a
closer range. The appellant’s legal representative endeavoured
to obtain concessions in cross-examination
that if the specific
cartridge had been under-loaded or defective, it would not have the
same effect pertaining to soot and gunpowder
tattooing as a normal
cartridge when being fired from the same distance. Similar
propositions were made to Warrant officer Shadung.
No value can be
placed on any concessions made by these two witnesses in this regard.
No reasonable foundation has been laid for
the cross-examination and
the propositions put to the witnesses. The opposite may rather be
more probable. Having regard to the
force of the cartridge would have
been of inferring the skull, going through the brain and exiting at
the other side, a normal
and well-loaded cartridge was probably used.
There is on probabilities no acceptable reason or explanation why
members of the SAPS
would be issued with sub-standard ammunition
and/or why the specific cartridge would have been of inferior
quality.
6.15
The appellant kept the deceased’s body in his room from 1
st
to 5
th
of May where after he lied to his friend in order
to borrow his car for purposes of transporting the body to the place
where he
dumped it next to the Reitz/Bethlehem road.
6.16
It is alleged that the appellant, a constable in the South African
Police Service, was so shocked by the accidental death of
his friend
and colleague that he embarked upon a series of lies and concealment
of the body. He was also afraid of the questions
that would have been
put to him relating to standing orders and the use of his firearm.
This, it was argued on his behalf, is quite
understandable and not
indicative of a guilty mind and/or murder. In my view this argument
is untenable and was correctly rejected
by the court
a quo.
6.17
Immediately after the death of the deceased the appellant removed the
sim card from the deceased’s cellphone to ensure
that the
cellphone would not be ringing, should anybody try to contact the
deceased.
6.18
In stead of running out of his room and calling for help and
explaining immediately what happened, i.e. that the deceased
accidentally wounded himself, he concealed the body underneath his
bed, took out the sim card, dressed himself, probably inserted
an
extra cartridge in the magazine and made the firearm safe, left his
room and made enquiries about the whereabouts of the deceased.
6.19
The appellant, being a police officer, should have known that if he
reported the alleged accidental shooting immediately, the
deceased’s
fingerprints would have been found on the firearm. Furthermore and on
all probabilities soot and/or gunpowder
tattooing would have been
found on the deceased’s left hand as well. His version for not
acting as such is improbable and
false.
6.20
The appellant told an unbelievable story about an incident that
happened two weeks before the fatal shooting. According to
him he
heard footsteps outside his room. He then cocked his firearm which
caused a cartridge to be inserted in the chamber. He
never made the
firearm safe when it appeared that there was no danger and thus left
the cartridge in the chamber and the safety
pin of the firearm on
“fire” since then. He reported for service on several
occasions since that incident until the
fatal shooting with an unsafe
firearm which is totally contrary to standing orders and logic.
6.21
It is improbable that the deceased would have used his left hand if
he wanted to commit suicide and/or aimed at his head from
a distance
in stead of pressing the barrel of the firearm against his head
before pulling the trigger. Mr. Reynecke conceded this.
6.22
It is inconceivable and improbable that the deceased, a relatively
experienced police officer, would play with the firearm
in his left
hand without noticing that the safety pin was on “fire”
and hold the firearm by turning his hand in an
extremely awkward
position to ensure that the barrel was facing his head and thereupon
pull the trigger – either with his
index finger which would be
very difficult, or his thumb which would be easier but extraordinary
- with a certain amount of force
in order for the shot to be fired.
It must also be remembered that the appellant wanted the court
a
quo
to believe that the deceased picked up the firearm and
enquired from his friend, the appellant, whether he knew how to
operate
it as if neither of them had any knowledge thereof.
[7]
Although this is not a case where reliance was placed on the evidence
of a single witness, the dictum of Holmes JA in
S v
ARTMAN AND ANOTHER
1968 (3) SA 339
(A) at 341 C is apposite,
i.e.
“
...
the
ultimate requirement is proof beyond reasonable doubt; and courts
must guard against their reasoning tending to become stifled
by
formalism. In other words, the exercise of caution must not be
allowed to displace the exercise of common sense.”
[8]
In
S v LACHMAN
2010 (2) SACR 52
(SCA) at 64 d
the Supreme Court of Appeal dealt as follows with circumstantial
evidence:
“
I bear in
mind in this regard that circumstantial evidence should never be
approached in a piecemeal fashion. The court should not
subject each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation
given by an
accused is true. The evidence needs to be considered in its
totality.”
The court went on in par.
[43] at 65 b of the judgment:
“
[43] This
evidence on behalf of the State becomes even more compelling when
weighed against the improbability of the appellant's
total denial of
all knowledge of the brown cellphone. As pointed out above, his
version, which is entirely speculative, was that
the cellphone must
have been 'planted' on his desk by an unknown person in a deliberate
attempt to frame the appellant.”
[9] The approach adopted
by Mr. Reynecke was popular at the Bar many decades ago, i.e. that
proof beyond reasonable doubt required
the State to eliminate every
hypothesis which was inconsistent with the accused’s guilt or
which, as it was also expressed,
consistent with his innocence. This
approach was rejected by Malan JA in a minority judgment in
R v
MLAMBO
1957 (4) SA 727
(A) at 737 F – 738 C. The
learned judge formulated his views as follows:
“
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.
An accused's claim to the benefit of a
doubt when it may be said to exist must not be derived from
speculation but must rest upon
a reasonable and solid foundation
created either by positive evidence or gathered from reasonable
inferences which are not in conflict
with, or outweighed by, the
proved facts of the case.”
This dictum has found
approval of the SCA and the former AD on several occasions. See
S
v PHALLO AND OTHERS
1999 (2) SACR 558
(SCA) at paras [10] and
[11] p. 562 g – 563 e.
[10]
Cognisance should be taken of the caution expressed by Hoexter JA in
S
v STEYNBERG
1983
(3) SA 140
(AD) at 147 H – 148 C where the learned judge opined
that the
MLAMBO
dictum
should
not be relied upon without qualification. It does not mean that in
every instance where an accused gives a false explanation
of a fatal
assault of which he was the sole witness, the deduction ought to be
made that he intended to kill. Put otherwise, there
is no room in
applying the
MLAMBO
dictum
to
find an accused guilty as retribution for his false version. See also
S
v MTSWENI
1985
(1) SA 590
(AD) at 594 A – D. Notwithstanding an accused’s
lies, a court should not necessarily find him to be the criminal.
There
may be reasons why an accused is untruthful and falsehoods do
not always justify the most extreme conclusion. The Supreme Court
of
Appeal issued the following warning in
S
v BURGER AND OTHERS
2010
(2) SACR 1
(SCA) at par. [30]:
“
[30] There
might be suitable cases in which it is safe to conclude that lies,
together with other acceptable evidence, prove the
guilt of an
accused. However, courts should be careful to decide against an
accused merely as punishment for untruthful evidence.”
[11] It was argued before
us on behalf of the appellant that taking into consideration the
trajectory of the cartridge, the uncertainty
as to the distance from
which the shot was fired and whether the cartridge was defective or
under-loaded, there was sufficient
room for a finding in favour of
the appellant that reasonable doubt existed and consequently, the
appellant’s version that
the deceased shot himself
accidentally, could not be discarded as not reasonably possibly true.
[12] The court
a quo
evaluated the evidence and dealt with the arguments presented to it
in a thorough and well-reasoned judgment. It may also be mentioned
that, bearing in mind the objective facts such as the seated position
of the deceased with his left-side facing the appellant standing,
and
the diagonal trajectory a deduction that the shot was fired by the
appellant from a higher position in the direction of the
lower
position of the seated deceased, is much more probable than the
appellant’s version that the deceased grabbed the firearm
with
his left hand and in one movement, whilst asking whether he knew how
it operated, turned it around with his hand in an extremely
awkward
position and pulled the trigger thereof, killing himself.
[13] No evidence was
presented that the specific cartridge or any of the other cartridges
in the appellant’s magazine were
under-loaded or defective. In
fact the severe consequences militate against such deduction. The
appellant did not testify about
the distance between the firearm and
deceased’s head when the shot was fired. The further away from
deceased’s head
the firearm was held, the more difficult it
would have been to operate it and to fatally wound the deceased. The
court
a quo
’s observations and finding in this regard
cannot be faulted.
[14] The appellant was
the only other person in the room and he did not testify that the
deceased tilted his head in a manner described
by Dr. Book. That
might have explained the trajectory of the cartridge if it could be
found that the firearm was held horizontally.
Accordingly such a
proposition is baseless.
[15] The appellant claims
to be entitled to the benefit of reasonable doubt. Such doubt cannot
be founded on mere speculation or
unproven hypotheses. No reasonable
and solid foundation was created, either by the evidence tendered, or
gathered from reasonable
inferences which are not in conflict with,
or outweighed by, the proven facts of the case.
[16] In my view the court
a quo
dealt with the principles of inferential reasoning as
set out in
R v BLOM
1939 AD 188
at 202 – 203
correctly. The inference that it drew from the evidence, of all the
proven objective facts excluded all other
reasonable inferences,
showed that appellant wrongfully and intentionally killed the
deceased by shooting him with his firearm.
Anything is possible as
the well-known cyclist, Lance Armstrong, exclaimed after he had
beaten cancer and went on to win the gruelling
Tour de France, but
that is not enough to find an accused not guilty in a court of law.
In the words of Denning J the “law
would fail to protect the
community if it admitted to fanciful possibilities to deflect the
cause of justice.” See
MILLER v MINISTER OF PENSIONS
[1947] 2 ALL ER 372
(King’s Bench) at 373H, a
dictum
which found approval in
PHALLO
loc cit
at
para 11.
[17] It is not
appellant’s case that he at any given time handled his firearm
when the fatal shot went off and in particular
that he accidentally
or negligently killed the deceased. Such possibility cannot
reasonably be inferred from the objective and
accepted facts.
Firstly, it is not appellant’s case and secondly, if it
happened that way, any reasonable person in the shoes
of the
appellant would immediately alarm the neighbours and arrange for
medical assistance in order to try and save the deceased’s
life. The reasonable person in such a situation would lend support to
the investigation process and showed remorse to the deceased’s
wife immediately. The appellant
in casu
did exactly the
opposite.
[18] In conclusion there
are no merits in appellant’s arguments and no reasons have been
advanced as to why the conviction
should be set aside.
[19] Consequently I would
dismiss the appeal.
_____________
J.P. DAFFUE, J
I concur. The appeal is
dismissed.
________________
M.H. RAMPAI, AJP
On
behalf of appellant: Mr JD Reyneke
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv E Liebenberg
Instructed
by:
Office of the Director of
Public Prosecutions
BLOEMFONTEIN
/sp